# Amicus Curiae Brief — Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0446%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 302

## Text

Supreme Court, U.S.
y TILED

Setkember 1a Iool Rae

No. 00-1167 CLERK

In the
Supreme Court of

the United States

TAHOE SIERRA PRESERVATION COUNCIL, INC., ET AL.,
Petitioners,
Vv.

TAHOE REGIONAL PLANNING AGENCY, &7 AL.,
Respondents.

On Writ of Certiorari to
the United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE
OF DEFENDERS OF PROPERTY RIGHTS
IN SUPPORT OF PETITIONER

Nancie G. Marzul!la*

Brenda D. Smith

DEFENDERS OF PROPERTY RIGHTS
1350 Connecticut Ave., NW
Suite 410

Washington, DC 20036

(202) 822-6770

*Counsel of Record for Amicus Curiae

vee

QUESTION PRESENTED

Amicus curiae will address the following question:

Whether the Ninth Circuit erred in holding that a
temporary planning moratorium cannot constitute a temporary
taking under the Fifth Amendment of the U.S. Constitution?

TABLE OF CONTENTS
Page
QUESTION PRESENTED ...........cssseccscccccccccccsecses il
TABLE OF AUTHORITIOG ..ccccccccccccccssccssssessoseses iv
INTEREST OF AMICUS CURIAE ........cccsscsssesseeseeeesees 2
STATEMENT OF THB CASE. ..ccccccsoccccsscssosccsscosescsssescssses 3
SUMMARY OF ARGUMENT ...........::0csceeeseeseeeevess 5
PET IGE ccocescssarsesssncersinnnitininiel 7
I. Whether Permanent or Temporary, a
Taking of All Economically Beneficial
Use of Property Demands Payment of
Just COMRORIGEGD 0 <cccsaccritensianssessenipeniiain 7
Il. The Court Below Erred in Holding that a
Temporary Planning Moratorium Cannot
Constitute a Temporary
TREE, coccccncecccososcsscsenncssnensameunmasaanel 12
CR IG ccnccecsscosscensconsesntensnesuniiianmmmanaaas 16

TABLE OF AUTHORITIES

Page
Cases:
Agins v. Tiburon, 447 U.S. 255 (1980)...........cccceccceeees 16
Armstrong v. United States, 364 U.S 40 (1960).............. 8
Bennett v. Spear, 520 U.S. 154 (1997)..............cccecc eee 2
City of Monterey v. Del Monte Dunes at Monterey, Ltd.,
EES 2
Dolan v. City of Tigard, 512 U.S. 374 (1994)................. 2
Dufau v. United States, 22 Cl. Ct. 156 (1990)............... 16

First English Evangelical Lutheran Church
of Glendale v. County of Los Angeles,

ee
Florida Rock Industries, Inc. v. United States,
18 F.3d 1560 (Fed. Cir. 1994)................ccccccccee cece 10-11
Fuller v. United States, 409 U.S. 488 (1973)...............00 s
Kaiser Aetna v. United States, 978 F.2d 1269
EEE u
Keene Corp. v. United States, 508 U.S. 200 (1993).......... 2
iv

Kimball Laundry Co. v. United States,
RA ne 5,6, 12

Loretto v. TelePrompter Manhattan CATV Corp.,
SD hs a icccccecccccnccccsseveceseccssccctesscstes 9-10

Lucas v. South Carolina Coastal Council,
ee passim

Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992)....9
Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001).......... 3

Phillips v. Washington Legal Foundation,
Fe hs Se cccnscnncncnscesenisiiiciiadiensscovetitananie 2

Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001)........3

Suitum v. Tahoe Regional Planning Agency,
a ET 2

Tabb Lakes. Inc. v. United States,
es CE nincetditninenesennesttinienninnertes 15-16

Tahoe Sierra Preservation Council v. Tahoe
Regional Planning Agency, 34 F Supp.2d 1226

Regional Planning Agency,

Tahoe Sierra Preservation Council v. Tahoe
Regional Planning Agency, 228 F.3d 998

EE iecenscernencencnvensececcevssesesecccesen 5, 15
United States v. Dow, 357 U.S. 17 (1958)............ 5, 6, 13
United States v. General Motors Corp..,
I ncicidenieeereaninaniienennsencesetial 5, 6, 13
United States v. Petty Motor Co.,
ane 12-13

Constitutional and Statutory Provisions:
catenin dieeslllll 8

Other Authorities:

James Madison, Property, 1 NAT'L GAZETTE 174
(1792) (reprinted in 4 LETTERS AND OTHER

WRITINGS OF JAMES MADISON 480 (1865)) ............0..00. 7

No. 00-1167

In the
Supreme Court of

the United States

TAHOE SIERRA PRESERVATION COUNCIL, INC., ETAL.,
Petitioners,
Vv.
TAHOE REGIONAL PLANNING AGENCY, ET AL.,
Respondents.

On Writ of Certiorari to
the United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF
DEFENDERS OF PROPERTY RIGHTS
IN SUPPORT OF PETITIONER

Pursuant to Rule 37.3 of the Rules of this Court,
amicus curiae submits this brief in support of petitioner.’
Both parties have consented to the filing of this brief.

'No counsel for either party authored this brief amicus curiae, either in
whole or in part. Furthermore, no persons other than amicus curiae
contributed financially to the preparation of this brief.

1

INTERESTS OF AMICUS CURIAE

Defenders of Property Rights is the only national
legal defense foundation dedicated exclusively to protecting
private property rights. Based in Washington, D.C.,
Defenders was founded as a non-profit, public interest legal
foundation in 1991. Its mission is to protect vigorously
those rights considered essential by the Framers of the
Constitution, and to promote a better understanding of the
relationship between private property rights and individual
liberty.

Defenders of Property Rights engages in litigation
across the country on behalf of its members and the public
interest to prevent government incursion into protections
guaranteed by the Bill of Rights. Defenders participated in
Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992); Keene Corp. v. United States, 508 U.S. 200 (1993);
Dolan v. City of Tigard, 512 U.S. 374 (1994); Bennett v.
Spear, 520 U.S. 154 (1997); Suitum v. Tahoe Regional
Planning Agency, 520 U.S. 725 (1997); Phillips v.

Washington Legal Foundation, 524 U.S. 156 (1998); City
of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

2

U.S. 687 (1999); Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001); and Palazzolo v. Rhode Island, 121 S. Ct. 2448
(2001).

STATEMENT OF THE CASE

Since 1969, when California and Nevada signed a
compact creating the Tahoe Regional Planning Agency
(“TRPA”), property owners in the Lake Tahoe region have
been fighting for the right to develop, or make any use at
all, of their property. In 1969, TRPA adopted land-use
Ordinance No. 4, which, among other things, classified the
land in the basin according to its “high” or “low”
susceptibility to environmental hazards. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 216 F.3d 764, 767 (9th Cir. 2000).

Subsequently, in 1980, the two states amended the
compact so that TRPA could develop a new regional plan.
TRPA then enacted two separate measures to prohibit
development during formulation of the revised plan. Jd. at
767-78. First, TRPA enacted Ordinance 81-5, which
became effective on August 24, 1981 and prohibited most

3

residential and all commercial construction on high hazard
lands. Jd. at 768. The second resolution, Ordinance 81-5,
which became effective on August 24, 1981, put in place a

development moratorium on all development of all of the

covered land. Jd. Although the resolution was drafted to
expire after a ninety-day period, it was extended until the
new regional plan was adopted. Jd.

On April 26, 1984, TRPA adopted its new regional
plan. Jd. The restrictions on development of “high-hazard”
lands in Ordinance 81-5, however, still remained in place
due to temporary measures adopted by TRPA. Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning
Agency, 34 F.Supp.2d 1226, 1236 (D. Nev. 1999), rev'd,
216 F.3d 764, 767 (9th Cir. 2000). On May 1, 1984, a
temporary restraining order was also issued, restricting
development of those lands. Jd. A permanent injunction
restricting development was issued in August of 1984,
which remained in force until another regional plan was
adopted in 1987. Jd. The restrictions on development of the
“high-hazard” lands in the Lake Tahoe area, however, still
continue today, under subsequent development plans.

4

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 228 F.3d 998, 999 (9tit Cir. 2000)
(denying pet. for rehearing en banc) (Kozinski, J.,
dissenting). Thus, for over two decades, property owners of
this “high-hazard” land in the Lake Tahoe region have been
restricted from any development of their land.

SUMMARY OF ARGUMENT

In the context of physical takings, this Court
recognizes no distinction between takings that are
permanent or for an interim period. See, e.g., United States
v. Dow, 357 U.S. 17 (1958); Kimball Laundry Co. v. United
States, 338 U.S. 1 (1946); United States v. General Motors
Corp., 323 U.S. 373 (1945). Likewise, there should be no
distinction, with respect to regulatory takings where there
has been a total deprivation of all economically beneficial
and productive use of the property.

If any regulation, temporary or otherwise, requires a
property owner “to sacrifice all economically beneficial use
in the name of the common good, that is, to leave his
property economically idle, he has suffered a taking.”
Lucas v. South Carolina Coastal Council, 505 U.S. 1003,

5

1019 (1992). Indeed, the “total deprivation of beneficial use
is, from the landowner’s point of view, the equivalent of a
physical appropriation.” Jd. at 1017; see also United States
v. Dow, 357 U.S. 17 (1958) (holding that temporary use and
occupation of property government is a taking for which
just compensation is “measured by the principles normally
governing the taking of a right to use property
temporarily”); United States v. General Motors Corp., 323
U.S. 373, 380 (1945) (holding that government occupancy
of property for “a day, a month, a year, or a series of years”
has a value that may be unconstitutionally taken without
just compensation); Kimball Laundry Co. v. United States,
338 U.S. 1, 6-7 (1946) (“These considerations have special
relevance where ‘property’ is ‘taken’ not in fee but for an
indeterminate period.”).

Furthermore, as this Court held in First English
Evangelical Lutheran Church of Glendale v. County of Los
Angeles, “temporary takings which, as here, deny a
landowner all use of his property, are not different in kind
from permanent takings, for which the Constitution clearly
requires compensation.” 482 U.S. 304, 319 (1987). Thus,

6

whether a regulation is imposed for three months, three
years, or until it may be invalidated by court declaration or
abandoned by the government, if the regulation deprives a
property owner of all economically beneficial use of his or
her land, the Fifth Amendment demands payment of just
compensation.
ARGUMENT

I, Whether Permanent or Temporary, a Taking of

All Economically Beneficial Use of Property

Demands Payment of Just Compensation.

The right to own and enjoy one’s property is one of
the fundamental rights on which our system of law is based.
James Madison wrote “as a man is said to have a right to
his property, he may be equally said to have a property in
his rights.” James Madison, Property, 1 NAT’L GAZETTE
174 (1792) (reprinted in 4 LETTERS AND OTHER WRITINGS
OF JAMES MADISON 480 (1865)). These rights, and more
particularly property rights, derive from equitable concepts
rooted in common law and in the principles of equity that
are reflected in the Just Compensation Clause of the Fifth
Amendment. In Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992), the Court explicitly recognized that
the Just Compensation Clause helps define a property
owner’s understanding of his or her rights in property:

In the case of land, however, we think that the
notion pressed by the council that title is
somehow held subject to the “implied
limitation” that the State may subsequently
eliminate all economically valuable use is
inconsistent with the historical compact
recorded in the Just Compensation Clause that
has become part of our constitutional culture.

Id. at 1028 (emphasis supplied)
The historical compact recorded in the Just

Compensation Clause is in essence an understanding that
government’s power will be constrained by principles of
fairness. Armstrong v. United States, 364 U.S 40 (1960).
While a government can, under certain circumstances,

“take” private property for public use, any such taking is

void unless it provides for fair payment in return. U.S.
Const. amend. V; see also Fuller v. United States, 409 U.S.
488, 490 (1973) (citation omitted) (“The constitutional
requirement of just compensation derives as much content

from the basic equitable principles of fairness as it does

from technical concepts of property law.”’).

The requirement of a stable system of property
rights for which the government’s taking of private property
triggers the duty to pay just compensation is reflected
throughout takings jurisprudence. For example, in Nixon v.
United States, 978 F.2d 1269 (D.C. Cir. 1992), the D.C.
Circuit Court of Appeals held that “[t]he essential character
of property is that it is made up of mutually reinforcing
understandings that are sufficiently well grounded to
support a claim of entitlement.” Jd. at 1275 (citing Kaiser
Aetna v. United States, 444 U.S. 164, 179 (1979) (holding
that property consists of recognized expectancies)). |

Using this historical basis for the Just Compensation
Clause, this Court has extended its application to both
physical takings as well as regulatory takings of private
property for public use. In Loretto v. TelePrompter
Manhattan CATV Corp., 458 U.S. 419 (1982), the Court
held that physical occupation of private property is a per se
violation of the Fifth Amendment:

The historical rule that a permanent physical
occupation of another’s property is a taking
has more than tradition to commend it. Such

9

an appropriation is perhaps the most serious
form of invasion of an owner’s property
interests. To borrow a metaphor, the
government does not simply take a single
“strand” from the “bundle” of property rights:
it chops through the bundle, taking a slice of
every strand.

Id. at 433-35 (citations omitted).

In Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992), the Court held that the taking of all
beneficial and productive use of private property is
tantamount to a physical taking and thus is also a per se
violation of the Just Compensation Clause:

[The] total deprivation of beneficial use is,
from the landowner’s point of view, the
equivalent of a physical appropriation. .. .
Where “permanent physical occupation” of
land is concerned, we have refused to allow
the government to decree it anew (without
compensation), no matter how weighty the
asserted “public interests” involved .. . We
believe similar treatment must be accorded
confiscatory regulations, i.e., regulations that
prohibit all economically beneficial use of
land.

Lucas, 505 U.S. at 1017, 1028-29 (citations omitted); see
also Florida Rock Industries, Inc. v. United States, 18 F.3d

10

1560, 1564-65 (Fed. Cir. 1994) (“The recent Supreme
Court decision in Lucas . . . teaches that [i]f a regulation
categorically prohibits all economically beneficial use of
land--destroying its economic value for private
ownership--the regulation has an effect equivalent to a
permanent physical occupation. There is, without more, a
compensable taking.”’).

Furthermore, such a regulatory taking may be
permanent or temporary. As Justice Kennedy noted in his
concurrence in Lucas, “(t]he potential for future relief does
not control our disposition, because whatever may occur in
the future cannot undo what has occurred in the past. . . .
[The Beachfront Management Act] may have deprived
petitioner of the use of his land in an interim period. If this
deprivation amounts to a taking, its limited duration will
not bar constitutional relief. It is well established that
temporary takings are as protected by the Constitution as
are permanent ones.” /d. at 1032-33 (Kennedy, J.,
concurring) (citing First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S.
304, 318 (1987)).

11

Il. The Court Below Erred in Holding That a

Temporary Planning Moratorium Cannot
Constitute a Temporary Taking.

This Court in First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, 482 U.S. 304
(1987), held that “temporary takings which, as here, deny a
landowner all use of his property, are not different in kind
from permanent takings, for which the Constitution clearly
requires compensation.” /d. at 319 (emphasis added). In so
holding, the Court recognized several different factual
scenarios upon which a “temporary” taking might be
established.

First, the Court recognized that a temporary taking
may arise when the government “temporarily exercise[s] its
right to use private property,” constituting a temporary
physical taking. See Kimball Laundry Co. v. United States,
338 U.S. 1 (1949) (determining just compensation for
temporary physical occupation of laundry to provide
laundry and dry cleaning service for members of the armed
forces); United States v. Petty Motor Co., 327 U.S. 372,
378 (1946) (holding that the taking of a leasehold, even

12

though temporary, required just compensation since “{i}f
any property is taken, compensation is required”); United
States v. General Motors Corp., 323 U.S. 373 (1945)
(holding just compensation due for the government’s
temporary use a specially equipped warehouse held under
long-term lease). “‘In such cases compensation would be
measured by the principles normally governing a taking of
a right to use property temporarily.” First English, 482
U.S. at 318 (quoting United States v. Dow, 357 U.S. 17, 26
(1958)). It is thus unquestioned that temporary physical
takings are compensable under the Fifth Amendment.
Another instance when a temporary taking may
arise, as the Court recognized in First English, is when the
government imposes a regulation which deprives a property
owner of all economically viable use of his property, and
later, abandons enforcement of the regulation or acquiesces
in a judicial declaration that the regulation effected an
unconstitutional taking. The First English Court held that
“fiJnvalidation of the ordinance or its successor ordinance
after this period of time, though converting the taking into a
‘temporary’ one, is not a sufficient remedy to meet the

13

demands of the Just Compensation Clause.” Jd. at 3.9.

The First English Court did not hold, however, as
the court below suggests, that a temporary taking may not
arise when a regulation is only imposed for a finite period,
such as the temporary planning moratorium in the present
case. Indeed, the Court in First English held that the issue
centered on whether all use of the property had been
deprived: “[W]here the government’s activities have
already worked a taking of all use of property, no
subsequent action by the government can relieve it of the
duty to provide compensation for the period during which
the taking was effective.” Jd. at 321.

Furthermore, similar to the moratorium imposed in
the present case, the ordinance at issue in First English was
an “interim” ordinance, passed in response to an emergency
flood situation. The fact that the ordinance was labeled
“interim” indicates that such ordinance would have been in
effect only for a finite time period until a permanent
ordinance could be adopted. The Court in First English,
however, did not require the property owners te wait until a
final ordinance was enacted, however, to find that a

14

compensable taking had occurred.

Further, while in theory, development moratoria are
imposed for a finite time period, in reality, these moratoria
may suspend development indefinitely. See Tahoe Sierra
Preservation Council v. Tahoe Regional Planning Agency,

228 F.3d 998, 1001 (9th Cir. 2000) (denying petition for

rehearing en banc) (Kozinsky, J., dissenting) (“[S]o-called
temporary moratoria have a habit of living beyond their
purported termination dates. In this case, a series of
consecutive development moratoria has prevented the
landowners from building any homes on their lots for two
decades since the start of this litigation.”).

Thus, a regulation that deprives a property owner of
the use of his or her property for such a lengthy time period,
or indeed indefinitely, is a taking of property under the
Fifth Amendment, whether or not the regulation is imposed
“permanently.” This comports with the various cases in
which lower courts have held that extraordinary delay by
the government in issuing a permit or making a permitting
decision may constitute a temporary taking. See e.g., Tabb
Lakes. Inc. v. United States, 26 Cl. Ct. 1334, 1352-54

15

(1992) (“In evaluating the reasonableness of. . . the she must be compensated under the Fifth Amendment.

permitting process . . . the key factor that the court must Respectfully submitted,
analyze is whether ‘extraordinary delay’ in the
governmental decision-making process gives rise to a Nancie G. Marzulla
temporary taking.”); Dufau v. United States, 22 Cl. Ct. 156, Brenda D. Smith
DEFENDERS OF PROPERTY RIGHTS

163 (1990) (“The Supreme Court has suggested that 1350 Connecticut Ave., NW
‘extraordinary delays’ in the process of government Suite 410

% Lrpayd etic ° , Washington, DC 20036
decision-making may give rise to a temporary taking (202) 822-6770

claim.”’) (citing First English, 482 U.S. at 321; Agins v.
Tiburon, 447 U.S. 255, 263, n.9 (1980)).
CONCLUSION

There is no basis under the Constitution for
distinguishing between physical takings and regulatory
takings with respect to a temporary takings analysis. The
key question, therefore, in a regulatory takings case, should
not be how long a regulation is imposed but rather, whether,
due to that regulation, a property owner was deprived of all
economically beneficial or productive use of his or her
property. If a property owner is temporarily deprived of ali
economically beneficial or productive use of his or her
property, then his or her property has been taken and he or

Date: September 12, 2001

16 17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0446%3A16. Public record. Not legal advice.